Appeals

Ontario's current system of appeal routes is complicated.
Three courts – the Court of Appeal, the Divisional Court
and the Superior Court of Justice – have appellate
jurisdiction in civil matters. Appeal routes differ depending on
the court appealed from, the monetary amount at issue and whether
the order appealed from is final or interlocutory.

In the mid- to late1990s, the unacceptable backlog in the
Court of Appeal for Ontario was brought under control. For all
practical purposes, it currently has no civil appeal backlog,
except in those cases where there are trial transcript problems.
(The latter may be an unintended consequence of the court's
initiative to expedite transcript preparation in criminal
proceedings.)

The Divisional Court, part of the Superior Court of Justice,
exercises a substantial appellate jurisdiction in addition to its
judicial review jurisdiction. Although Divisional Court resources
are stretched, delay is not a pressing problem. I note, however,
that when the Divisional Court appellate jurisdiction increases
from $25,000 to $50,000 on October 1, 2007, the Divisional Court
will inherit more appellate work. Inevitably, this will put more
pressure on the Superior Court of Justice, particularly in
Toronto, since more judges or more judge time will have to be
committed to the Divisional Court at the expense of other
Superior Court business.

As far back as I can recall, there has been a debate about
what the Divisional Court should be doing and whether the
generalist Superior Court (which provides the Divisional Court
judges) should adjust so that judges with expertise in
administrative law and judicial review preside in the Divisional
Court. The debate includes the role of the Divisional Court. A
frequently asked question is whether there should be more
emphasis on the Divisional Court's judicial review jurisdiction
and less on its appellate jurisdiction. Less frequently asked is
whether there may be another way to deal with judicial review
applications (the principal area of concern expressed about the
Divisional Court), leaving the Divisional Court as an
intermediate appellate court. This Review did not directly deal
with these issues. This is something that the Law Commission of
Ontario might consider addressing.

Where an appeal goes, as matters now stand, requires
consideration of the unfascinating distinction between a final
and interlocutory order. If the order is final, the appeal from
it is to the Court of Appeal. If the order is interlocutory, the
appeal is to the Divisional Court. That would present no problem
if it were relatively easy to determine whether an order is final
or interlocutory.

The most recent and, I think, useful example of the
final/interlocutory order problem is found in Capital Forms
Income Steams Corp. v. Merrill Lynch Canada Inc., [2007]
O.J. No. 2606. In that case, the entire 23-page judgment
considered one issue – whether the order appealed from was
final or interlocutory. The appeal was argued by two experienced
counsel who both thought that the order in issue was final. In
the end, after reserving judgment, the majority (Doherty and
Jurianz JJ.A.) held that the order appealed from was
interlocutory and that the appeal must therefore be quashed since
the Court of Appeal had no jurisdiction to hear appeals from
interlocutory orders. In dissent, Laskin J.A. disagreed. He
concluded that the order appealed from was final. In his
dissenting reasons he advanced the final/interlocutory order
distinction. He wrote at para. 36:

The distinction between final and interlocutory orders bedevils
this court. Far too much ink has been spilled over the pages of
the Ontario Reports, grappling with this distinction. Even when
the parties themselves do not raise the issue, the court itself
often feels compelled to do so – as it did in this case
– because the court's jurisdiction to hear an appeal
turns on the distinction: final orders are appealable as of
right to this court; interlocutory orders are not.

And yet, despite the very large number of decisions on
whether a particular order is final or interlocutory, our
court's jurisprudence on the distinction has been anything but
a model of consistency …. The litigation bar – even
the experienced members of that bar – cannot always
fathom whether an order is final or not. There is no better
example than this case. [footnote omitted]

I agree with Laskin J.A. that too much ink has been spilled
over this issue. Would it not be better to confer jurisdiction on
the Court of Appeal if the order appealed from finally disposes
the action or application? If it does not, that is if the action
will continue notwithstanding the order, the appeal is to the
Divisional Court, in my view, with leave. The Civil Rules
Committee should review this core issue and in the end, I hope,
make a recommendation to the Attorney General for a legislative
amendment to the Courts of Justice Act that would
jettison the final/interlocutory distinction.

There are two other appeal-related issues that I think should
be considered. The first concerns dismissed summary judgment
motions and the second concerns appeals from certain awards in
arbitrations.

Consultations revealed considerable support for singling out
summary judgment orders by having appeals from those orders go to
the Court of Appeal whether or not summary judgment is granted or
dismissed. Currently, the appeal from a dismissed summary
judgment motion is to the Divisional Court, with leave, while the
appeal from a granted summary judgment order is to the Court of
Appeal. The policy rationale for this distinction finds its home
in the rationale for the distinction between interlocutory and
final order.

There was also considerable support for having appeals from
arbitration awards of more than $50,000 go to the Court of
Appeal. This would establish a parallel process with s. 19 of the
Courts of Justice Act, which provides the Court of
Appeal with jurisdiction to hear appeals from trial judgments
over $50,000 (as of October 1, 2007).

Recommendations (Appeals)

The Law Commission of Ontario should undertake a review of
the role of the Divisional Court as a court of intermediate
appellate jurisdiction and make recommendations regarding the
court's future role and jurisdiction. This review should
consider both the judicial review and appellate jurisdiction of
the Divisional Court.

The Civil Rules Committee should consider and recommend to
the Attorney General changes to the Courts of Justice Act so
that only orders finally disposing of an action/application
would be appealable to the Court of Appeal. Appeals from all
other orders would be to the Divisional Court. The Civil Rules
Committee can best determine if leave should be required and,
if so, on what basis leave would be granted.

Appeals from summary judgment orders issued under rule 20
should be to the Court of Appeal if the amount in issue is
otherwise within the jurisdiction of the Court of Appeal.

Appeals from awards through the Arbitration Act should be
to the Court of Appeal if the amount involved (more than
$50,000) brings the award within the monetary jurisdiction of
the Court of Appeal.